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The Court of Appeal of Tanzania at Dar es Salaam Rules on the right of Advocates

Advocates with less than 5 years of practice to draft, sign and lodge documents at the Court of Appeal

By Gasper Nyika and Faiza Salah

The Court of Appeal of Tanzania at Dar es Salaam (Court) has clarified the meaning of   Rule 33 (3) of the Court of Appeal Rules, 2009 (Rules) which impose a   bar for advocates with less than five years of practice post admission to appear before the Court of Appeal of Tanzania. The clarification was recently made by the decision of the Court in the case between Standard Chartered Bank, Standard Chartered Bank Hong Kong, Wartsila Nederlands B.V, Wartsila Tanzania Limited and VIP Engineering & Marketing Limited, 7 March 2022, Consolidated Civil Application No. 76 and 90 of 2016, (unreported).

On 7 March 2022, the Court delivered a ruling on Preliminary Objections raised by VIP Engineering & Marketing Limited (Respondent) against the Applications for revision filed by Standard Charted Bank, Standard Charted Bank Hong Kong, Wartsila Nederlands B.V and Wartsila Tanzania Limited (1st, 2nd, 3rd and 4th applicants respectively).

One of the Respondent’s many objections was that the Notice of Motion filed by the 1st and 2nd Applicants’ advocate was incompetent for having, at the time of lodging in 2016 been   drafted, signed and endorsed by an advocate who had less than five years of practice post admission. The Respondent argued that the Notice of Motion, Certificate of Urgency and the supporting Affidavit were bad in law for being improperly drawn, endorsed and lodged by a counsel with no right of audience before the Court of Appeal as required by Rule 33 (3) of the Rules. The Applicants argued that the bar or limitation imposed by Rule 33 of the Rules was only limited to audience or appearance for hearing before the Court of Appeal and did not include drafting, signing and endorsement of documents.

In its Ruling, the Court agreed with the Applicants’ arguments and proceeded to overrule the Respondent’s objection for being devoid of merit deciding that Rule 33 (3) of the Rules, only restricts an advocate who has not practiced for a period of not less than five years from appearing before the Court of Appeal and the rule did not relate to drafting, endorsement and lodging of documents.

The significance of this decision is that it clears the perceived fears and misunderstanding that Rule 33(3) of the Rules applies to all forms of practice before the Court of Appeal including drafting, signing and endorsement of documents. The decision opens doors to young lawyers to start to learn and master the Court of Appeal’s practices early and openly and has widened the choice of lawyers for litigants at least when it comes to drafting and filing of Court of Appeal’s documents.

In the same decision the Court has departed from the long-standing position set in the famous case of Benedict Mabalanganya v. Romwald Sanga [2005] 2 E.A 152 and as maintained in a series of other subsequent decisions that in an application for revision all proceedings and documents subject of the matter before the High Court must be included in the record of revision failure of which the application will be considered incompetent. The position now is that an application for revision would be competent as long as it contains proceedings or documents of the High Court sufficient to determine the revision application.